Madhya Pradesh High Court
Mrs Kavita Dehalwar vs Union Of India on 5 July, 2022
Author: Nandita Dubey
Bench: Nandita Dubey
W.P. No. 8575/2015
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE HON'BLE SMT. JUSTICE NANDITA DUBEY
th
ON THE 5 OF JULY, 2022
WRIT PETITION No. 8575 of 2015
Between:-
MRS KAVITA DEHALWAR W/O BRAJESH
VISHWAKARMA, AGED ABOUT 39 YEARS, R/O 6/21
MANIT CAMPUS, BHOPAL (MADHYA PRADESH
....PETITIONER
(By Shri H.K. Upadhyay, Advocate )
AND
1. UNION OF INDIA THR. ITS SECRETARY MINISTRY OF
HUMAN RESOURCES DEVELOPMENT DEPTT., GOVT.
OF INDIA, SHASTRI BHAWAN, NEW DELHI (DELHI)
2. MAULANA AZAD NATIONAL INSTITUTE OF
TECHNOLOGY, THROUGH ITS DIRECTOR, BHOPAL
(MADHYA PRADESH)
3. BOARD OF GOVERNOR, THROUGH ITS MEMBER
SECRETARY, MAULANA AZAD NATIONAL
INSTITUTE OF TECHNOLOGY, BHOPAL (MADHYA
PRADESH)
W.P. No. 8575/2015
2
4. DR. GEETA BALI, CHAIRMAN MAULANA AZAD
NATIONAL INSTITUTE OF TECHNOLOGY, BHOPAL
(MADHYA PRADESH)
5. DR. APPU KUTTAN K.K., DIRECTOR MAULANA AZAD
NATIONAL INSTITUTE OF TECHNOLOGY, BHOPAL
(MADHYA PRADESH)
6. DR. GEETA AGNIHOTRI, SENATE MEMBER, MAULANA
AZAD NATIONAL INSTITUTE OF TECHNOLOGY, BHOPAL
(MADHYA PRADESH)
7. SHRI P.T. DEO, MEMBER OF BOARD OF GOVERNOR
DIRECTOR/(RETIRED EXECUTIVE DIRECTOR, BHEL)
INDIAN POWER MANAGEMENT ACADEMY, 30/E7
ASHOKA HOUSING SOCIETY, ARERA COLONY, BHOPAL
(MADHYA PRADESH)
.......RESPONDENTS
(By Shri Pushpendra Yadav, Asst. Solicitor General for
respondent No.1 and Shri Yogesh Bhatnagar, Advocate for
respondents No. 2 to 7)
This petition coming on for hearing this day, the court
passed the following:
ORDER
This petition under Article 226 of the Constitution of India has been preferred against the order dated 29.05.2015 and also the order dated 05.03.2015 passed by the Director, Maulana Azad National Institute of Technology, Bhopal, whereby the W.P. No. 8575/2015 3 appointment order of petitioner dated 10.08.2005 has been cancelled with immediate effect.
2. Petitioner holds a Bachelor degree in Architecture (B Arch.) in First Division of the year 2002 from Maulana Azad National Institute of Technology and also registered with the Council of Architecture and has experience of having work as associate in a private Architecture firm.
3. The respondent No.2 is Maulana Azad National Institute of Technology, Bhopal (hereinafter referred to as Institute), a deemed University under the National Institute of Technology Act. The Institute invited applications for 47 posts of Lecturers, 13 posts of Assistant Professors, two posts of Assistant Librarians and one post of Training and Placement Officer in the rank of Professor. The essential qualifications for the afore- advertised posts was as per the AICTE norms.
4. Pursuant to the advertisement, petitioner applied for the post of Lecturer (Architecture and Planning) under Scheduled Caste category. She was called for interview with the original documents for verification (Annexure P-6). The Selection Committee after verification of her educational qualifications and experience issued an appointment letter dated 10.08.2005, appointing her on probation for a period of two years with effect W.P. No. 8575/2015 4 from the date of joining duty, subject to medical fitness, satisfactory character antecedents verification through the police authorities and the verification of the caste certificate (for reserved category). The appointment letter mentioned that her appointment shall be governed by the terms and conditions of service of the Institute and any subsequent notification/amendment that may be made therein from time to time. Petitioner joined the post on 16.08.2005 and was confirmed on 16.08.2007 after successful completion of her probation period of two years. In the year 2009, she was awarded Masters' degree (M.Tech.) in Urban Development and Planning. She also applied for Ph.D. and was granted permission vide letter dated 24.02.2011.
5. The petitioner was issued a show cause notice dated 27.06.2011 stating that she did not possess the minimum qualification/eligibility required for the post of Lecturer, but managed the selection by concealment of facts by illegal means and with the connivance of the power. The show cause notice was based on the recommendation of a two Member Committee, which was subsequently considered by the competent appointing authority. The petitioner replied to the said show cause notice asking for certain documents which were supplied to her vide letter dated 08.07.2011. However, the aforestated proceedings were W.P. No. 8575/2015 5 dropped after considering the reply of the petitioner and no further action was taken on the show cause notice.
6. Petitioner's appointment was however, cancelled with immediate effect vide order dated 05.03.2015 based on the recommendation of two enquiry committees, namely Lodha Committee and Justice M.A. Siddiqui Committee. The Lodha committee enquired into the selection/appointment made on the aforesaid post in the year 2005 and found that the selection process was not in accordance with the law/prevailing rules and AICTE norms mentioned in the advertisement, which has vitiated and relegated the entire selection process to be an eye wash and recommended quashment of entire selection process. Thereafter, Justice M.A. Siddiqui Committee was constituted on 25.04.2014 to review and analyse the recommendations of the aforesaid two member committee. This committee found the appointment of present petitioner alongwith four others as illegal and without proper qualification. This report was submitted to the Board of Governor, who accepted the recommendation on 22.02.2015 and took a decision to cancel the appointment of the present petitioner alongwith other four persons mentioned therein holding their appointments as illegal ab initio.
7. The case of petitioner is that the advertisement mentions qualification as per AICTE norms. Earlier the W.P. No. 8575/2015 6 qualification prescribes for the post of Lecturer in degree level technical Institute for Architecture/Planning discipline was Masters/Master, however by corrigendum dated 05.02.2002 (Annexure P-30-A), the minimum qualification and experience for technical teachers in the discipline of Architecture/Planning was amended/modified to First Class Bachelor's Degree in Architecture. Hence, petitioner fulfilled the eligibility criteria, on the date of publication of advertisement, but this corrigendum was not placed before the Committee and both the committees reached to a wrong conclusion relying on the earlier unamended notification. Furthermore, as no notice or opportunity of hearing was granted to the petitioner by these committee's, the correct facts and the corrigendum dated 05.02.2022, modifying the minimum qualification criteria could not be brought before the committee.
8. Per contra, the stand of respondent Institution is that the impugned orders has been issued on the basis of two enquiry reports, i.e., by Lodha Committee and Justice M.A. Siddique committee. Both the committees examined the genuineness of 2005 recruitment as to whether the eligibility criteria prescribed for appointment was strictly followed during the recruitment process. Lodha committee comprising of two members gave proper opportunity of hearing to the selected candidates including the petitioner. The Lodha Committee after considering the 'Table E-5' W.P. No. 8575/2015 7 which prescribes the qualification for the post of Lecturer in Architecture and planning discipline, came to the conclusion that the recruitment was not in accordance with the law and AICTE norms and recommended the entire selection process be quashed. The Justice M.A. Siddiqui committee after review of Lodha Committee's report, came to the conclusion that the appointment of petitioner and four others as Lecturers was illegal and void ab initio as they did not fulfill the minimum qualification prescribed for the respective post. It is pointed out that the advertisement dated 09.06.2005 clearly mentioned that AICTE norms are applicable and as per AICTE norms for the post of Lecturer in Architecture and Planning discipline, minimum qualification was Master's/Master Degree in Architecture as per "Table E-5", however, the petitioner admittedly was holding only a Bachelor Degree in B. Arch. The selection committee did not adhered to the minimum qualification Rules of the AICTE. Since the petitioner was wrongly appointed on the post of Lecturer, despite not having requisite qualification, her appointment on the post was illegal, since its inception, and therefore, does not create any right in her favour. Reliance has been placed on (2008) 7 SCC 153 Pramod Kumar Vs. U.P. Secondary Education Services Commission and others, (2012) 9 SCC 545 State Of Gujarat and others vs Arvind kumar T.Tiwari and another and (2013) 11 SCC Rakesh Kumar Sharma Vs. State (NCT of Delhi) and others 58 .
W.P. No. 8575/2015 89. No other grounds have been raised by the counsel for the parties.
10. Heard the learned counsel for the parties at length and perused the record.
11. The issue in the present petition is :-
(i) Whether petitioner was holding requisite qualification as per AICTE norms on the date of publication of advertisement ;
(ii) Whether the petitioner has been given an opportunity of being heard before terminating her services
12. Several contentions has been raised by the learned counsel on either side. But before referring to them, I deem it necessary to reproduce the impugned order and the relevant parts of the concerned reports and the notifications involved.
13. The order of termination dated 05.03.2015 reads as under :- (Annexure P-18) MAULANA AZAD NATIONAL INST TECHNOLOGY, BHOPAL No. 11/10(1)/210 ORDER Dated: 05/03/2015 Pursuant to complaints received regarding irregularities and violation of rules in the appointment of Assistant Professors, Lecturers, Training and Placement W.P. No. 8575/2015 9 Officer and Assistant Librarians in the Institute in the year 2005, an enquiry was ordered by the Ministry of Human Resource Development by Mr. M.N. Buch, IAS (retired). On the recommendation of Buch Committee, the Ministry of Human Resource Development directed the Chairman of the Institute to get the matter further investigated. A three Member Committee was appointed under the chairmanship of Shri S.M. Shukla, which recommended further investigation into the matter, which was further referred to the CBI. Thereafter the Board of Governors (BOG) took a decision in its 22nd meeting held on 05/08/2010 to appoint a Judicial Enquiry Committee to enquire into the matter. The BOG in its 23 meeting held on 14/11/2010 reconstituted the Judicial Enquiry Committee and appointed Shri S.H. Lodha and Shri R.K. Tripathi as its members."
The Judicial Enquiry Committee enquired into the selection/appointment made on the aforesaid posts in the year 2005. The Committee after making thorough investigation and affording opportunity of hearing to the appointees submitted detailed report to the BOG on 19/4/2011. The Judicial Enquiry Committee found that the scrutiny and selection process was not in accordance with law, prevailing rules and AICTE norms mentioned in the advertisement, which has vitiated and relegated the entire selection process to be an eye wash and deserves to be quashed.
In compliance of the BOG decision in its 36th meeting held on 25/4/2014, the Institute constituted a three Member Committee comprising of Justice Shri MA Siddiqui, retired High Court Judge as Chairman and two members Shri PT. Deo and Dr. Geeta Agnihotri to analyze the recommendations of the aforesaid two Member Committee.
The three Member Committee found the appointment of
(i) Shri Abhay Sharma, (ii) Dr. Aruna Saxena, (iii) Mrs Kavita Dehalwar, (iv) Mrs Anshu Gupta and (V) Mrs Archana Saxena illegal and without proper qualification as held by the two Member Judicial Enquiry Committee and submitted its report to the BOG.
The BOG accepted the recommendations of the three Member Committee in its 40th meeting held on 22/02/2015 and took a decision to cancel the appointment of Shri Abhay Sharma, Assistant Professor (now Associate Professor), Dr. Aruna Saxena, Training and Placement Officer, Mrs Kavita W.P. No. 8575/2015 10 Dehalwar, Assistant Professor Mrs. Anshu Gupta, Assistant Professor and Mrs Archana Saxena, Assistan Librarian as their appointment was illegal ab-initio Hon'ble High Court of Madhya Pradesh at Jabalpur in W.P. 8157/2008(S) and W.P. No.8038/2008(S) filed by Dr. Aruna Saxena and Mr. Abhay Sharma respectively has given direction not to take any coercive action against them and accordingly action against them is being kept in abeyance, till the decision of their respective writ petition and/or setting aside of the aforesaid interim orders is passed by the Hon'ble High Court.
Appointment Order No. Prof. I/C (OA)/2005/1696 dated 10/08/2005 of Mrs. Kavita Dehalwar, Assistant Professor; Appointment Order No. Prof. I/C (OA)/2005/1329 dated 14/07/2005 of Mrs Anshu Gupta, Assistant Professor and Appointment Order No. Prof. I/C (OA)/2005/1324 dated 14/07/2005 of Mrs Archana Saxena, Assistant Librarian are hereby cancelled ab-initio with immediate effect.
Authority. Decision of 40th BOG meeting held on 22/02/2015 DIRECTOR
14. A bare perusal of the aforestated order reveals that five times enquiry was conducted by different committees. Initially a three member committed was appointed under the Chairmanship of Shri S.M. Shukla, which recommended further investigation into the matter which was further referred to CBI. Prior to this, pursuant to a complaint made by one A.B. Patel, National President, APPAX regarding irregularities in the selection process, Dr. G.L. Jhambulkar was directed to look into the allegations. He submitted his enquiry report on 22.11.2005 (Ex. P-21). The summary and conclusion reached by Dr. Jhabulkar is reproduced as under :-
W.P. No. 8575/2015 11After going through all the records pertaining to recruitment of faculty through open selection and granting financial upgradation to existing faculty in the Institute, it is observed that the time given for response to apply for the posts was only 15 days from the date of advertisement, which is far short, as Department of Personnel & Training instructions clearly indicates that minimum 6 weeks time should be given for response from the date of advertisement. On enquiry it was clarified by the Institute that the new academic session was to commence from 19.07.2005 less time was given for responding to the advertisements. From the response received to the advertisements, it may be stated that though short time was given by the Institute, number of applications received were quiet encouraging and large number of candidates appeared before the Selection Committee. The Selection Committee had sufficient scope to select the best talent available for appointment as faculty in the Institute. The Institute has followed the procedures and process very meticulously and none of the direction given by the Ministry was violated. While making appointments reservation roasters were taken care of, and adequate number of Scheduled Caste, Scheduled Tribes and Other Backward Classes candidates were selected.
The Jhambulkar's report further mentions that :-
Two objections were pointed out of which a communication has been received from Shri AP Patel, National President APPAX stating that they have after lodging the complaints against the Institute, verified all the necessary documents in the Institute and found everything in order. After this verification the APPAX National President has withdrawn the letter written to the Honble HRM on the allegations against the Institute.W.P. No. 8575/2015 12
15. The report of CBI enquiry, which is annexed to the petition as Annexure P-24 was restricted to examine the gross irregularities and violation of the rules by unknown officials of the MANIT in the process of recruitment/promotion of Shri Abhay Sharma, Assistant Professor, Dr. Arun Saxena, Training and Placement Officer and Dr. Ashutosh Sharma, Professor and others of MANIT. The CBI in its report at para 60 it was mentioned that the recruitment of teaching/non-teaching staff of MANIT were approved by the Ministry also, except the proposal to grant promotion from Assistant Professor to Professor under CAS to candidates without Ph.D. As per CBI's recommendation, no case was made out for registration of a regular case, therefore the P.E. has been closed.
16. It seems the Board of Governor were not satisfied with the clean chit given by the earlier enquiry committee and CBI. Hence, they constituted another committee, i.e., the Justice Lodha committee consisting of two members. This committee submitted its report 19.04.2011 on the recruitment of Assistant Professors, Lecturers, TPO and Assistant Librarian. This report is annexed to petition as Annexure P-25. The relevant portion of the report with regard to SC category to which the petitioner belongs is reproduced as under :-
W.P. No. 8575/2015 13Out of 48 lecturers, 17 lecturers were selected under reserved category (09-OBC, 07-SC and 01-ST) and no irregularity was observed in their selections except in case of Ms Kavita Dehalwar (SC) who did not fulfill minimum qualifications. Their names are as follows -
1. Ms. Preeti Omkar (Architecture and Planning)
2. Ns, Jyoti Bharati (CSE & IT)
3. Mr. Amit Bhagat (MCA)
4.Mr. Alok Singh (Workshop)
5. Mr. Sukh Ranjan Samdder (Civil)
6. Ms. Kavita Dehalwar (Architecture and Planning) Simply. B.Arch and was selected illegally
7. Mr. Manoj Arya (Mechanical) It was further observed that Ms. Kavita Dehalwar was simply B Arch. at the time of her selection as Lecturer, whereas minimum qualification prescribed by AICTE was Post Graduation in Architecture and Planning.
17. In its enquiry report on Lectures, the committee has observed thus :-
ARCHITECTURE AND PLANNING:- Scrutiny Committee consisting of Dr. Alka Bharat, Dr. Sonia Taneja and Dr. Nakul Dhagat examined 52 applications received for 03 posts of Lecturers in Architecture and Planning department. Though essential qualification was as per AICTE norms, Scrutiny Committee set the criterion of 65% or more marks obtained by candidates at undergraduate and postgraduate level. Committee short listed 42 candidates who fulfilled the criterion. Out of 42 candidates recommended for W.P. No. 8575/2015 14 interview 27 candidates had post graduate degree and 15 were only 'B' Arch.
In Table E-5 of AICTE minimum qualification and experience prescribed for lecturers in degree level Institutions in Architecture and Planning disciplines has been given as first class Master's/Master degree in appropriate branch of Architecture and Planning. Unfortunately this was lost sight of and 15 B.Arch candidates were shortlisted.
The aforestated Table E-5 relied on by the Committee and annexed to the report is reproduced as under :-
Table - E-5 MINIMUM QUALIFICATION AND EXPERIENCE PRESCRIBED FOR TEACHING POST IN DEGREE LEVEL TECHNICAL INSTITUTIONS ARCHITECTURE / PLANNING DISCIPLINES SL. CADRE QUALIFICATION EXPERIENCE QUALIFICATION & NO. EXPERIENCE FOR CANDIDATES FROM INDUSTRY & PROFESSION
1. Lecturer First Class Master's/ No minimum Master's degree in requirement appropriate branch of Architecture/ Planning
2. Assistant First Class Master 5 years experience Candidate from Professor degree in the appropriate in Teaching/ Industry/Profession branch of Architecture/ Industry/Research with First Class Planning at the level of Bachelor's/Master's Lecturer or degree in the equivalent appropriate branch of Architecture/Plannin g AND Professional work which is significant and can be recognised as equivalent to Ph.D. degree and with 5 years experience would also be W.P. No. 8575/2015 15 eligible.
3. Professor i.Master's degree or 10 years experience Candidates from equivalent qualification in Teaching/ Industry/Profession in the appropriate branch Industry/Research with First Class of Architecture/Planning out of which 5 Bachelor's/Master's AND years must be at the degree in appropriate level of Assistant branch of ii. Ph. D. degree in an Professor or Architecture/Plannin appropriate branch of equivalent g AND architecture/planning. In Professional work lieu of Ph.D. degree which is published works significant and can be inreferred journals recognized as equivalent to Ph.D. may equivalent to Ph.D. be accepted. degree and with 10 years experience of which atleast 5 years should be at a Senior Level comparable to that of an Assistant Professor would also be eligible.
i. Master's degree or 15 years experience Candidates from
4. Director equivalent qualification in Teaching/ Industry/Profession in the appropriate branch Industry/ Research with First of Architecture / out of which -5 Bachelor's/Masters Planning AND years must be at the degree in the level of Professor appropriate branch of ii. Ph.D. degree in an or above in Architecture/ appropriate branch of Pharmacy Planning AND Architecture / Planning Desirable: Professional work Administrative which is significant OR experience in and can be responsible recognised as Published works in positions. equivalent to Ph.D. referred journals degree and with 15 equivalent to Ph.D. In years experience of addition to (i), (ii) the which atleast 5 years candidate should be an should be at a Senior eminent person in the Level comparable to field. that of a Professor would also be eligible.
Desirable Administrative W.P. No. 8575/2015 16 Experience in a responsible positions Note: If a class/division is not awarded at Master's Level, a minimum of 60% marks in aggregate shall be considered equivalent to first class/division. If a Grade Point system is adopted the CGPA will be converted into equivalent marks as given in Table E-6 The report further mentions :-
Against 03 posts of Lecturers 06 candidates namely 1) Smt. Anshu Gupta 2) Anuj Jaiswal 3) Smt. Rajshri Kamath 4) Smt. Supriya Vyas of General Category 5) Smt Preeti Omkar and 6) Mrs. Kavita Dehalwar were selected which smacks of favouritism and under hand dealing. This was most probably done intentionally. in order to select less qualified candidates who would have not been selected otherwise. In the process 02 undergraduates namely Mrs. Anshu Gupta and Kavita Dehalwar who did not even fulfill minimum prescribed qualification were finally selected as Lecturers though better postgraduate candidates were available.
18. Justice Siddiqui's committee consisting of three members was constituted to review the recommendations of Lodha-Tripathi committee's judicial report for the illegal appointment, specifically for the following five appointments:
1. Dr. Abhay Sharma
2. Dr. Aaruna Saxena
3. Mrs. Kavita Dehalwar
4. Mrs Anshu Gupta and
5. Mrs. Archana Saxena The report annexed to petition as Annexure P-26 also refers to para 21 of the Lodha-Tripathi committee report as under :-W.P. No. 8575/2015 17
Para No.21: therefore, it is observed that the whole scrutiny and selection process was not in accordance with law, prevailing rules and AICTE norms mentioned in advertisement. Thus this has vitiated and relegated the entire selection process to be an eye was and deserves to be quashed.
19. The Justice M.A. Siddiqui Committee, after perusing all the reports including the CBI and judicial enquiry report as well as Director's report, reached to a conclusion that, as the reference to this Committee is limited to above five appointments, and as per above discussion, the appointments of all above five found illegal and without proper qualifications as per Judicial Committee Report. So we are of the view that action may be taken against Mrs. Kavita Delahlwar, Mrs. Anshu Gupta and Mrs. Archana Saxena as per the recommendations of Lodha- Tripathi Committee Reports accordingly. As the case of Dr. Aruna Saxena is subjudice in the Hon'ble High Court of Madhya Pradesh at Jabalpur by W.P. No. 8157/2008(S) and case of Mr. Abhay Sharma is also subjudice in the High Court of Madhya Pradesh at Jabalpur by W.P. No. 8038/2008(S), so any action will be subject to the clearance of the Hon'ble High Court for the both.
20. The AICTE notification dated 05.02.2002 has been obtained by the petitioner under the RTI and annexed to the petition as Ex. P-30-A. This notification by way of corrigedum, W.P. No. 8575/2015 18 amended/modified the the minimum qualification and experience for technical teachers in Architecture/Planning discipline and superseded the qualification and experience given in Table E-5 in the earlier notification dated 15.03.2000 and 03.05.2000. The corrigendum dated 05.02.2002, alongwith the modified table is reproduced as under :-
vf[ky Hkkjrh; rduhdh f'k{kk ifj"kn~ ALL INDIA COUNCIL. FOR TECHNICAL EDUCATION ( Hkkjr ljdkj dk ,d lokZf/kd lLaFkku ) (A STATUTORY BODY OF THE GOVERNMENT OF INDIA) CORRIGENDUM F.No.FD/Pay/01/2001-2002 Dated: 5 Feb. 2002 To.
The Secretaries Dealing with Technical Institutions of All State Govt and Union Territories Sub: Minimum qualifications and experience for technical teachers in the discipline of Architecture/Planning - reg...
(i) AICTE Notification No.1-65/CD/NEC/98-99, dated March 15, 2000 for Degree level Technical Institutions.
(ii) AICTE Notification No.1-65/CD/NEC/98-99, dated May 03, 2000 for Degree level Technical Institutions (Private Self Financing) Sir, Consequent upon representation from the teachers of Architecture/Planning, the minimum qualification and experience for technical teachers in this discipline has been re-examined by a Committee of Experts. The modified minimum qualification and experience for various posts are given in the W.P. No. 8575/2015 19 Annexure to this letter. These supersede the qualification and experience given in Table-E-5 in the above-referred notifications, This is issued with the approval of the Competent Authority.
Yours faithfully, sd/-
(Dr. S. K. Srivastava)
Advisor (Faculty Development)
MINIMUM QUALIFICATION AND EXPERIENCE
PRESCRIBED FOR TEACHING POST IN DEGREE LEVEL TECHNICAL INSTITUTIONS ARCHITECTURE / PLANNING DISCIPLINES Sl.No Cadre Qualification EXPERIENCE Qualification and (excluding time experience for period for candidates from acquisition of Practice P.G,/Ph,D Qualification)
1. Lecturer First Class Bachelor's No minimum Degree in Architecture requirement OR
(i) Bachelor's Degree in Architecure; and
(ii) First Class Master's Degree in Architecture/ Planning
2. Assistant (i) First Class 5 years experience Candidates from Professor Bachelor's Degree in in Teaching/ Practice with Architecture, and Practice/Research at Bachelor's Degree in
(ii) Master's Degree in the level of Lecturer Architecture and Architecture/Planning or equivalent Master's Degree it OR Architecture Planing
(i) Bachelor's Degree in having First Class at Architecure; and either of the level an
(ii) First Class Master's having 5 years of Degree in Architecture/ professional Planning experience shall also OR be eligible
(i) First Class Bachelor's Degree in W.P. No. 8575/2015 20 Architecture; and
(ii)Ph.D in Architecture/ Planning
3. Professor (1) First Class 10 years experience Candidates from Bachelor's Degree in Teaching/Practice/R Practice with Architecture; esearch out of Bachelor's Degree in
(ii) Master's Degree in which 5 years must Architecture Master's Architecture/Planning; be and at the level Degree Architecture and of Assistant Planning having First
(iii) Ph.D Planning in Professor or Class at either of the Architecture or equivalent in case level a having done published research the candidate is professional which is works in referred Ph.D. significant and can I journals significant OR recognized professional work 13 years experience equivalent to Ph.D which can be in Teaching/ Architecture / considered equivalent Practice/ Research Planning and with 13 to Ph.D. out of which 5 years years of profession OR must be at the level experience, out of
(i) Bachelor's Degree in of Assistant in which 5 years should Architecure, Professor or be at a Senior Level.
(ii) First Class Master's equivalent in case
Degree in Architecture / the candidate is not
Planning: and Ph.D.
(iii) Ph.D. in
Architecture Planning
or published research
works in referred
journals significant
21. Relevant part of Table E-5 (unamended), which forms part of Notification dated 15.03.2000 and 03.05.2000 is extracted herein below :-
Table - E-5 MINIMUM QUALIFICATION AND EXPERIENCE PRESCRIBED FOR TEACHING POST IN DEGREE LEVEL TECHNICAL INSTITUTIONS ARCHITECTURE / PLANNING DISCIPLINES SL. CADRE QUALIFICATION EXPERIENCE QUALIFICATION & NO. EXPERIENCE FOR CANDIDATES W.P. No. 8575/2015 21 FROM INDUSTRY & PROFESSION
1. Lecturer First Class Master's/ No minimum Master's degree in requirement appropriate branch of Architecture/ Planning
22. A bare perusal of the qualification mentioned for the post of Lecturer in Architecture/Planning in the superseded Table E-5, referred to above shows that it is the same Table E-5, relied upon by the Lodha Committee, to adjudge the petitioner as ineligible/unqualified for the post of Lecturer.
23. The contention of Shri Bhatnagar that the petitioner did not possess the requisite qualification for the post of Lecturer in view of the qualifications prescribed in the Table 17.3 and 17.3.1 of the Handbook annexed as Annexure A-5 to the petition holds no merit, for the reason that :-
(i) the Hand Book and the qualifications came into effect vide notification dated 28.11.2005, i.e., much later to the date of appointment of the petitioner;
(ii) these tables 17.3 or 17.3.1. were not considered by the Lodha Committee while declaring the petitioner as unqualified.
24. Further the reliance placed by respondent on notification dated 09.06.2005 (Annexure P-3) is also misplaced as this notification, only repeals the earlier Notifications dated W.P. No. 8575/2015 22 23.11.1994, 12.12.1997, 26.08.2000, 25.11.2002 and 20.10.2003 and in no way affects the Notification dated 15.03.2000, 03.05.2000 and the corrigendum dated 05.02.2002. Moreover, no document/notification has been produced by the respondent to show that the corrigendum dated 05.02.2002 was superseded. Rather the Table 17.3 of the Handbook (Annexure P-5) shows that the qualification for teaching post in UG Technical Institution is still as amended by the aforestated corrigendum, i.e., First Class Bachlor's degree in Architecture or equivalent.
25. On the basis of aforeanalysed, it is evident that the Lodha committee incorrectly relied on the unamended 'Table E-5' which had been superseded by corrigendum in 2002 to draw the conclusion that petitioner's appointment was against the regulations. The Justice Siqqiqui Committee also made the same mistake and being ignorant/unaware of the corrigendum dated 05.02.2002, put a seal of approval on the report of Lodha committee. Though the institution was well aware and in possession of this corrigendum dated 05.02.2002, but deliberately suppressed this fact from the enquiry committee for the reasons best known to it.
26. Though the impugned order dated 05.03.2015 mentions that the Lodha Committee afforded opportunity of hearing to the appointees but no such document or statement of W.P. No. 8575/2015 23 petitioner is referred to in the aforesaid report nor produced by the respondent-Institution, which may establish that petitioner was afforded any opportunity of hearing. The document dated 11.07.2011 (Annexure P-17) referred to by Shri Bhatnagar in the reply submitted by the petitioner pursuant to the show cause notice dated 27.06.2011 and not her statement before the Lodha committee or Justice M.A. Siddiqui committee. It is thus evident from record that the petitioner's appointment was cancelled without giving any opportunity of hearing to her. Had she be given an opportunity, she could have brought the modified Table E-5 to the notice of the committee.
27. In Basudeo Tiwary Vs. Sido Kanhu University and others (1998) 8 SCC 194 the Apex Court has observed :-
9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment.
This aspect was exhaustively considered by a constitution Bench of this Court in Delhi Iransport Corporation vs. D.T.C. Mazdoor Congress reported in AIR 1991 SC 101.
W.P. No. 8575/2015 24Further in para 12, it is held :
12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry will the person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read.
28. In Pramod Kumar (supra), relied on by the respondents, the Supreme Court has held thus :-
W.P. No. 8575/2015 2518. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be. {See Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others [(2006) 4 SCC 1] National Fertilizers Ltd. and Ors. Vs. Somvir Singh [(2006)5SCC493] and Post Master General, Kolkata and Ors. Vs. Tutu Das (Dutta) [(2007)5SCC317] } Similarly in State of Gujarat and others (supra) , the Supreme Court has observed thus:-
14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules is, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegibility and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See: Prit Singh v. S.K. Mangal & Ors., 1993(1) SCC (Supp.) 714; and Pramod Kumar v. U.P. Secondary Education Services Commission & Ors., AIR 2008 SC 1817).
The respondent has also relied on Rakesh Kumar Sharma (supra), wherein the Supreme Court held thus :-
W.P. No. 8575/2015 2622. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement.
23. There is no obligation on the court to protect an illegal appointment. The extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible.
The process of verification and notice of termination in the instant case followed within a very short proximity of the appointment and was not delayed at all so as to even remotely give rise to an expectancy of continuance.
29. The ratio laid down in the aforestated decisions, relied upon by the respondents is, however, not applicable to the facts of present case, wherein despite possessing the requisite qualification, petitioner's appointment was cancelled relying on a superseded Table E-5.
W.P. No. 8575/2015 2730. Admittedly, in this case, as held hereinabove, petitioner was holding B. Arch. degree and as per amended table E-5 dated 05.02.2002 was qualified for the post of Lecturer. However, the appointment was cancelled on the basis of the unamended qualification mentioned in Table E-5. Furthermore, no notice or opportunity of hearing has been given to petitioner before holding her appointment as void ab initio. Had she been issued notice or given an opportunity, she could have brought the correct facts and the Corrigedum to the notice of the committee. Under the facts and circumstances, the impugned order cancelling/terminating the appointment of petitioner cannot be sustained.
31. In the result, petition is allowed. The orders dated 29.05.2015 and 05.03.2021 (with regard to petitioner only) is set aside. The petitioner be reinstated in service within a period of six weeks. Since the services of petitioner has been wrongly terminated, she would be entitled for 50% towards her salary.
(Nandita Dubey) Judge gn Digitally signed by SMT. GEETHA NAIR Date: 2022.07.14 13:23:55 +05'30'